Why consider mediation in your divorce matter
The South African court system is a very acrimonious system and when you are involved in a litigation process, the end result is to come out as the winner or loser. Unfortunately, in divorce matters, there are no winners.
When dealing with a divorce, the parties, and sometimes the one party more than the other, will experience a rollercoaster ride of emotions, which can impact or delay the legal process. Every party experiences different types of emotions, which may vary from feeling hurt, betrayed, questioning themselves and their abilities of being a good husband or a good wife, and even depression, but to name a few. In order for the parties to get to an emotional position of self-worth after a failed marriage, litigation should be avoided at all costs, as litigation proceedings can be long, stressful, unpredictable and costly. It is recommended that parties get to early settlement of their divorce to avoid additional stress, costs and uncertainty.
Divorce can be a very traumatised event. For some a divorce is a “loss of something”, a “loss” they mourn about. Each individual person reacts differently to trauma and loss. For some the divorce can have a positive impact, even on the children, but for some, the divorce can have a negative impact. How the parties respond emotionally to the divorce, ie negatively or positively, may have an effect on how the divorce process will be dealt with.
How mediation works
The term “litigation” is associated with resolving disputes in open court through trial or motion proceedings. The alternative way to resolve disputes relating to a divorce matter, is through mediation.
In mediation proceedings, a mediator facilitates discussions between the parties, acts impartially and assists the parties to come to a mutually agreed arrangement with regards to the points the parties cannot get to an agreement on their own. Each party can raise their voice and concerns. The mediation process is a process to mutually and privately get to an agreement without being in a public court, exposing yourself to the interrogation or cross-examination by attorneys or advocates, leaving your future in the hands of a Judge or Magistrate.
The mediator will only assist and guide the parties to get to settlement of their divorce without having to go to court. At mediation, the focus is not on applying the Law, but on the needs of the parties and how they can assist or accommodate each other on various points in order to have an amicable divorce. The mediator (who may also be an attorney) should not provide any party with legal advice during the mediation process. However, should any party wish to obtain legal advice, they can obtain legal advice from their respective independent attorneys. In such circumstances, the parties need to guard against bringing such legal advice they receive from their respective attorneys to use same against the other party in course of the mediation process. This can cause the mediation process to fail before it even started.
How to engage in mediation
Mediation will only be as successful as what the parties allow it to be. When you decide to engage in mediation there are certain aspects that you need to know and think about in order to allow the mediation process to be successful.
Jasen Crowley (How to approach Divorce Mediation, what NOT to do) provided some good tips how not to approach a mediation process. These tips are as follows:
- Do not go into the mediation with a “win at all costs” mentality. Mediation is about working together and compromise. You are being reasonable in exchange for a whole slew of benefits in return. If you were to go to court, you probably wouldn’t win everything you want anyway.
- Do not make false accusations against your spouse. That means not claiming spousal abuse, drug or alcohol use, child abuse unless it actually happened.
- Do not push buttons and use every opportunity to anger your spouse. You should be thinking just the opposite, working to solve problems instead of creating new ones;
- Do not use your children as a way to bargain for unreasonable demands. Your children are not possessions and it cannot be iterated enough that you do not use your children against each other;
- Do not underestimate the value of being the master of your own fate. With mediation, you have more control than if you would go to trial, where laws and the interpretations of a judge will decide how your future life plays out;
- Do not seek revenge or punishment against your spouse. View mediation as a business deal, a problem to be solved instead of a battle to be won;
- Do not show up unprepared. Mediation requires participation by both parties. This includes gathering documents, setting goals, being open to compromise and not wasting time;
- Do not enter into mediation if you are not willing to be an active participant. You cannot be passive and hope that mediation solves your problems. You must be honest and willing to speak up for yourself;
- Do not enter into mediation if you want to publicly shame your spouse. Mediation is just the opposite. Many couples choose mediation because it affords them greater privacy, especially when it coming to revealing finances;
- Do not enter into mediation if you are in a hurry. Mediation takes time. If you are in a hurry, you put yourself at a disadvantage;
- Do not allow your attorney to have too much influence. Attorneys are trained to protect your interest at all costs. Sometime that can get in the way of negotiating a compromised settlement.
When to start mediation
Divorce mediation can be entered into from the moment the parties decide to separate or when the parties have already launched formal divorce proceedings.
Mediation could therefore be considered any time parties need assistance to agree on aspects like the following:
- the primary residence of the children;
- maintenance towards the children;
- spousal maintenance; or
- division of assets.
Unmarried parents can also engage into a mediation should the parties not be able to get to amicable arrangements by themselves, for instance, with regards to the maintenance and supervision of children born from their relationship.
Following the above, mediation can be quicker, cheaper and more confidential than to going to court. At mediation you will receive the result amenable to both parties in a confidential manner. By going to court can be risky as you do not know how the Judge or Magistrate will rule on your matter and you might step out with a result not in your favour. With mediation there is going to be less animosity during the process and that means there is going to be more stability after the divorce.
This article was written by Aldi Writes, from Aldi Writes Attorneys. She is a trained Family Law and Divorce Mediator, specialising in Family Law matters and divorces. For more information on options for divorce proceedings, or if you require mediation assistance for family related matters, you are welcome to contact her on [email protected].
Source: Article from Jasen Crowley – Survive Divorce – (How to approach Divorce Mediation, what NOT to do)